Thursday, August 06, 2009

Officers exceeded scope of pat down

Shelley Kurt Bock won in State v. Hoadley, No. 101,205 (Kan. App. July 31, 2009)(unpublished), affirming Judge Martin's suppression order in a Douglas County drug prosecution. The COA held that the officers obtained consent to search during a voluntary encounter, thus making the encounter itself lawful. But the COA held that a prior KSC was on point and supported the district court's suppression order:

The analysis in [State v. Lee, 283 Kan. 771, 156 P.3d 1284 (2007)] is directly applicable to our case. There, officers received a report that a suspicious man was walking through a public park. Two uniformed officers investigated and found Lee, who matched the description from the report, and asked to talk to him. Lee agreed but continued to search the ground for a wallet he said he had lost. The officers asked for permission to conduct a pat-down search for weapons, and Lee consented.

The officer patted Lee down and removed a rolled-up baggie containing methamphetamine from Lee's pocket. He was charged with possession and filed a suppression motion arguing unlawful seizure during an investigatory detention.

The Kansas Supreme Court disagreed with the detention argument, holding a reasonable person in Lee's position would have felt free to disregard the officer's request and, consequently, the patdown did not violate Lee's Fourth Amendment rights because Lee voluntarily consented to the patdown. But, our Supreme Court affirmed Lee's motion to suppress, finding the pocket search exceeded the scope of the patdown for weapons and the plain feel exception did not apply in this case.

While the evidence at the suppression hearing was conflicted, the district court by its decision in this case found the State failed in its burden of proof to show that Hoadley's pocket was open and that the baggie was in plain view.

The COA held that Lee was "directly applicable" and affirmed the suppression order.

[Update: the state did not file a PR and the mandate issued on September 3, 2009.]

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